pol icy br ief Number 1 . december 2008

A2K and the WIPO Development Agenda: Time to List the “Public Domain”*

1. The importance of the “public domain” as a unifying concept

The WIPO Development Agenda serves as an opportunity, not only for

developing countries and public interest organizations, but also for more

developed countries to place the notion of the “public domain” at the centre

of the intellectual property (IP) debate. The term “public domain” is relevant

to three areas: (a) the interrelation between intellectual property rights

(IPRs) and various facets of development; (b) the A2K mobilization efforts;

and (c) the nature and governance of creativity (and innovation).

IPRs and development

Not only is the notion of “public domain” clearly incorporated within the

WIPO Development Agenda, it is also part of the more general call for

“inclusive and member-driven” norm-setting processes.3 Recommendation

16 of the WIPO Development Agenda states that WIPO’s normative processes

should consider “the preservation of the public domain” and “deepen the

By Uma SuthersanenSchool of law, Queen mary university of london

Access to knowledge (A2K)-related issues have been an important component

of the initiative of a Development Agenda for the World Intellectual Property

Organization (WIPO) since its launch in 2004.1 The WIPO Development Agenda

is an ambitious document that calls for WIPO to revisit its mandate and shift

from its traditional emphasis on the promotion and expansion of intellectual

property rights towards a more development-oriented approach. In 2007,

the WIPO General Assembly adopted 45 recommendations with a view to

integrating this development dimension in all of the organization’s activities.2

The recommendations are divided into six clusters. The most relevant ones in

relation to the A2K movement are Cluster B (norm-setting, flexibilities, public

policy, and public domain) and Cluster C (technology transfer, information

and communication technologies (ICT), and access to knowledge).

The recommendations that this paper considers most directly relevant to A2K

are as follows:

(a). Preserve the public domain and support norm-setting processes that

promote a robust public domain;

(b). Initiate discussions on how to further facilitate access to knowledge

for developing countries and least developed countries (LDCs) in order

to foster creativity and innovation; and

(c). Establish a forum for exchange of experiences on open collaborative

projects such as the Human Genome Project.

* A preliminary version of this paper was presented at the panel on A2K and the WIPO Development Agenda, A2K3 Conference, held in Geneva, 8–10 September 2008. See http://a2k3.org/.

UNCTAD-ICTSD Projects on IPRs and Sustainable Development

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analysis of the implications and benefits of a rich and

accessible public domain.” Recommendation 20 aims

to promote “norm-setting activities related to IP that

support a robust public domain in WIPO’s member States,

including the possibility of preparing guidelines that could

assist interested member States in identifying subject

matters that have fallen into the public domain within

their respective jurisdictions”.

The concept of “public domain” (or its variants, such as

“information commons”, “open access” or “open source”)

has been employed by various stakeholders to point to the

growing social and economic disparity between developed

regions (such as the United States and the European

Union) and developing countries. The usage, without

discrimination, has been applied to the pharmaceutical,

knowledge and biotechnology industries, covering goods

such as medicines, digital products such as software, and

educational and scientific research. As one commentator

describes it, “From the “digital divide”, to biotechnology,

to medical research, open source and open access have

become key components in the strategy to boost the

fortunes of developing countries.” 4

Framing the “A2K movement”

The rhetoric of the A2K movement has also employed

the ethos of the “public domain” to mobilize disparate

interest groups such as access-to-medicine campaigners,

farmers’ rights groups, indigenous rights claimants, and

collaborative-centred groups (such as GNU Linux and other

free/open software projects, and the Human Genome

Project). The notion of the public domain thus allows

various stakeholders with different objectives and aims

to find a commonality in purpose vis-à-vis intellectual

property rights.

Nature and governance of creativity and innovation

“Public domain” has been at the heart of current discourse

on the legitimacy and continuing relevance of the modern

legal interpretation of the subject matter and scope of

protection of innovative products as well. Specifically,

the notion of “public domain” has been a rallying force,

uniting many of the current dissatisfactions expressed

against various facets of intellectual property law, such

as (a) the fact that limitations and exceptions tend to be

permissive rather than mandatory; (b) anti-competitive

behaviour in the knowledge industries is poorly curtailed;

(c) the growing expansion of IP law has led to a lack of

access to essential medicines and education; and (d)

increasing obstacles impede follow-on innovation.

Reforming our perceptions has transformed IP politics and

policy.5 Boyle, for instance, suggests that IP changes can

be better effected through “affirmative arguments for

the public domain” and the “use of the language of the

commons to defend the possibility of distributed methods

of non-proprietary production.”6 Thus, the notion of

preserving a “public domain” has been at the core of

arguments of activists who clamour for different and

alternative governance structures based on contract law,

liability-based rules, open IPR models and private ordering

schemes (such as the Creative Commons). Advocates argue

that such open systems are the most efficient means to

access knowledge and foster creativity and innovation,

especially for LDCs and developing countries. Part of this

argument relies on their suggestion that widening the

public domain/intellectual commons will spur development

and promote a more equitable distribution of the world’s

resources. Nevertheless, as Boyle himself concedes, “the

public domain must be “invented” before it is saved.”

2. “Inventing” norms- the tale of the “Three-Step test”

The proposals in Cluster B – “norm-setting, flexibilities,

public policy and public domain” – appear to propose

reforms that will govern the treaty-making process. Part

of the task will include drafting the definition of “public

domain” and setting out the guidelines for countries to

identify and list public domain works. This will be one of the

most challenging tasks: obfuscation has to be consciously

avoided, diplomatic language should be eschewed, and

placatory compromises – so often found in international

treaties – should be omitted. The Berne/Agreement on

Trade-Related Aspects of Intellectual Property Rights

(TRIPS) “three-step test” offers a useful historical lesson

in this respect.

Sophistry: treaty interpretation

The three-step test is a good example of a typical

international legal provision that is difficult to interpret

and implement in the domestic context. The provision,

which is set out in different terminology even within the

same treaty,7 subjects signatories of the Berne Union, the

TRIPS Agreement, and the two WIPO copyright treaties to

“confine limitations and exceptions to exclusive rights to

certain special cases which do not conflict with a normal

exploitation of the work and do not unreasonably prejudice

the legitimate interests of the rights holder” (language of

art. 9(2), Berne Convention).

There are no specific provisions within the Berne

Convention, the TRIPS Agreement, or the WIPO treaties

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dealing with the interpretation of specific provisions. This

is a notable gap, given that the extreme vagueness of the

TRIPS Agreement’s provisions and its language, especially

as far as the exceptions and limitations are concerned,

make it difficult to interpret.8 For example, annex 1 of

the Dispute Settlement Understanding in the agreement

suggests that, in order to clarify any TRIPS provisions,

one should adopt “customary rules of interpretation of

public international law”. Another popular approach is to

resort to the Vienna Convention on the Law of Treaties,

which codifies the customary rules of interpretation of

public international law, especially article 31, which

states: “A treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to

the terms of the treaty in their context and in the light

of its object and purpose.”9

These words do not actually convey anything useful to

jurists or legislators, whether they hail from developed

nations, developing countries or LDCs. For example,

one reading of article 31 of the Vienna Convention calls

for an interpretation of treaties on the presumed basis

that the text is the authentic expression of the intention

of the parties. How does a local court practically and

pragmatically apply this guideline? What are the criteria

for determining whether a particular interpretation

expresses the intention of the drafting parties? Faced

with such vague treaty language, courts in several

developed countries have adopted a broader teleological

interpretation of the treaties; however, this can only work

if it is backed by judicial activism, as in the United States

and European Union.10

We face a similar dilemma in relation to recommendation

20 of the WIPO Development Agenda. The words

sound promising: norm-setting activities that foster

and encourage a robust public domain. Yet, what

constitutes a work within the “public domain”? How

do we guard against the misappropriation of existing

public domain works via relaxed IP rules? Who is the

final arbiter of whether something is within the public

domain or not?

Defining the “public domain” and listing a set of works

as constituting “public domain” is a good start.

Teleology: local interpretation

What is the teleological approach? The teleological

(evolutionary) approach suggests that, in addition to

looking at the “meaning of the text” or the “intention

of the parties” or at “good faith interpretation” and

“legitimate expectations of the parties” (all of which is

required to a certain extent by article 31 of the Vienna

Convention on the Law of Treaties), courts should also

look to the general purpose of the treaty and regard the

treaty as having an existence independent of the original

intentions of the framers.11

The teleological approach is in line with a specific

endorsement under the Vienna Convention on treaties

in that it calls for judges and courts to interpret law

taking account of present day conditions.12 Legal rules

cannot be detached from societal, political, and economic

changes, and the law will only remain relevant if these

changes are considered.13 What the teleological approach

teaches us is that international rules (and norms) are not

inscribed on a stone tablet; it is very much up to local

stakeholders (law enforcers, courts, jurists, activists and

lawyers) to define an international norm. And if a norm-

setting exercise involves a revolutionary, holistic and

all-embracing phrase – such as “public domain” – that

is beyond local endeavours, it should be taken up on a

regional or international scale.

Norm-setting: the Munich Declaration on the “Three-Step Test”

In respect of a newly invented term such as “public

domain”, the practical policy would be to draft parameters

of interpretation, accounting for the fact that global norms

are being processed into local norms. Such parameters can

take any, or even all, of these forms:

Guidelines;•

Declarations;•

Explanatory memoranda.•

Such parameters should be clear and yet flexible enough

to suit a developing country’s own constitutional,

developmental and socio-economic needs. This paper

does not, however, advocate that the whole of the TRIPS

Agreement or other international treaties be interpreted

employing this approach. Rather, it may be time to define

certain phrases, provisions and principles by looking at

these contextually within specific factual and political

circumstances, as opposed to an abstract fashion (i.e. by

looking at the intention of the parties to the treaty).

One example of a recent norm-setting activity is the

initiative by the Max Planck Institute for Intellectual

Property and the School of Law at Queen Mary, London.

After two years of round-table discussion, a group of

European experts launched a declaration on “A Balanced

Interpretation of the “Three-Step Test” in Copyright

Law”. The concern was mainly that, while international

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copyright harmonization appeared to primarily serve the

“interests of copyright-exporting countries in a secure

and predictable trading environment, historic evidence,

economic theory and the principle of self-determination

suggest that individual States should have sufficient

flexibility to shape copyright law to their own cultural,

social and economic development needs”.14

Perhaps the most surprising aspect of this declaration is

that the group of experts comprised many “traditional”

advocates of the copyright system, rather than A2K

activists or other public interest non-governmental

organizations. Nevertheless, these experts (comprised

of academics and practitioners) believe that current

definition and interpretation of the three-step test by

European national courts and the World Trade Organization

(WTO) Dispute Settlement Panel, is incomplete, and

sometimes inaccurate.15 Thus, the declaration attempts

to give possible interpretations of the test by eschewing

the intent of the framers of the test (if any), and instead

contextualizing it within the overall public interest basis

of copyright law. Indeed, as paragraph 6 of the declaration

emphasizes:

“The Three-Step Test should be interpreted in a

manner that respects the legitimate interests of third

parties, including

interests deriving from human rights and fundamental •

freedoms;

interests in competition, notably on secondary •

markets; and

other public interests, notably in scientific progress •

and cultural, social, or economic development.”

3. Guidelines on the “public domain”

There are several practical steps that can be adopted

in relation to defining “public domain”, including the

following: (a) defining the concept (either by means of a

positive or negative definition); (b) setting out the criteria

for types of works that fulfil the definition; and (c) listing

works of public domain.

Avoiding the trap of defining the concept

While it might not make sense to define the concept, any

guideline should contain a group of definitions, if only to

demarcate clearly the ethos of public domain, if not the

actual legal construct. Indeed, it may even be prudent to

avoid a definition, as most attempts tend to be circular: to fall

into the public domain, the subject matter is not protected

by any IPRs, and subject matter that rightfully falls into the

public domain will not be protected by any IPRs.

Thus, a summation of all the following definitions can prove

useful, even if they cannot be reduced to an all-embracing,

cogent legal definition:

(a) The public domain refers to a vast repository of the

basic building blocks of creation, commonplace subject

matter, or new entrants to the public domain for which

the relevant intellectual property rights have expired;

(b) The public domain refers to abstract subject matter,

such as ideas or discoveries, as well as matters that

have entered the public domain due to the end of

protection or due to standardization;

(c) The public domain is the realm of “intellectual

property-free resources” unprotected either because

they were ineligible for protection in the first place

or because they have been “freed” by invalidation or

expiry of the relevant intellectual property right;16

(d) The public domain is the status of an invention, creative

work, commercial symbol or any other creation that is

not protected by any form of intellectual property;17

The public domain is defined as the “laws’ primary safeguard

of the raw material that makes authorship possible [...] (it)

should be understood not as the realm of material that is

undeserving of protection, but as a device that permits the

rest of the system to work by leaving the raw material of

authorship available for authors to use”;18

The public domain is considered part of the common

cultural and intellectual heritage of humanity. It provides a

fertile foundation on which creators can build new works,

as well as a rich source of content for education;19

The term public domain refers to creative materials that

are not protected by intellectual property laws such as

copyright, trademark or patent laws. The public owns these

works, not an individual author or artist. Anyone can use a

public domain work without obtaining permission, but no

one can ever own it.20

One difficulty is determining whether the notion of

“public domain” is equivalent with terms such as “open

source,”21 “open access,” “information commons,”

“intangible commons of the mind” and “knowledge

commons.” Perhaps the most pragmatic means of solving

this definitional problem is to incorporate the various

nuances and accept them as a means of defining the

“public domain”. For instance, the phrases “open access”

and “open source” are concepts based on the perspective

that innovation and creativity can only be fostered in the

presence of an open, commons-based pool of ideas and

knowledge, i.e. a “robust public domain”.

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An international register of “public domain matter”

A public domain does not exist ex nihilo; rather, one

must consider the maturity of any existing open source

community as relating to a particular technology and

the corpus of existing public domain material that later

innovators can use.22 Developing countries and LDCs should

be able to rely on an international and mature listing of

public domain material to boost their own indigenous

innovation.

Another reason why an international list of public domain

works could be important is the mandate conferred

by recommendation 19, which calls on WIPO to foster

creativity and innovation in developing countries and

LDCs.

Innovation can be categorized as “discrete” or

“cumulative”; in reality, however, a vast majority of

scientific and cultural creations, if not all, are built on pre-

existing creations and discoveries, and do not represent

giant leaps beyond what we already know.23 Innovation

and creativity also depend, to a very large extent, on

access to a corpus of existing public domain sources, or

at least, viable access in terms of technology and pricing.

Such access should not be limited to the existing body

within a particular jurisdiction, but should be extended to

an international list of “public domain” materials.

Thus, a list of public domain material may only be really

useful in furthering innovation within LDCs and developing

countries if it drew upon other more developed countries.

In this respect, one should note that recommendation

20 may have the tendency to narrow the mandate as

it recommends that member States identify “subject

matters that have fallen into the public domain within

their respective jurisdictions.”

There is no rational or convincing reason why the “public

domain” should be confined jurisdictionally. In many

respects, building an international list of public domain

works may be the only way to adjust our conceptual notion

of IP law.

Selection criteria for public domain – borrowing from the World Heritage

How should a future WIPO/Stakeholders Committee

determine whether the material is within the public

domain or not? The first, relatively easy, task is to

build a framework of the current flexibilities within the

international intellectual property agreements. This would

allow one to immediately identify a list of public domain

matters, such as the texts and translations of official texts

and decrees.

The second, and possibly more challenging task, would be

to formulate the selection criteria.

As a comparison, we can look at the efforts made since

the 1970s to build an international list of world heritage

sites – a task that must have been daunting, especially in

terms of selection criteria.24 It is worth noting some of

the selection criteria of what constitutes a world heritage

site:

(a) To exhibit an important interchange of human values,

over a span of time or within a cultural area of the

world, on developments in architecture or technology,

monumental arts, town-planning, or landscape design;

(b) To bear a unique or at least exceptional testimony

to a cultural tradition or to a civilization which is

living or which has disappeared;

(c) To be directly or tangibly associated with events or

living traditions, with ideas, or with beliefs, with

artistic and literary works of outstanding universal

significance;

(d) To contain the most important and significant

natural habitats for in-situ conservation of

biological diversity, including those containing

threatened species of outstanding universal value

from the point of view of science or conservation.

More instructive is the manner in which the United Nations

Educational, Scientific and Cultural Organization (UNESCO)

has implemented the convention’s mandate by setting up

a permanent intergovernmental committee to consider

nominations from State parties, and by drawing up and

constantly revising its operational guidelines. The current

173-page guidelines set out that nominations for heritage

sites must not only be based on the selection criteria,

but also on “carefully prepared documentation” that is

evaluated by “qualified experts” and expert referees.25

The guidelines may be lengthy but the pastoral language

is undoubtedly more helpful than formal treaty language

for States considering whether to nominate a particular

national cultural or natural site for World Heritage status.

Examples of these pastoral guidelines include:

(a) Attributes such as spirit and feeling do not lend

themselves easily to practical applications of the

conditions of authenticity, but nevertheless are

important indicators of character and sense of

place, for example, in communities maintaining

tradition and cultural continuity.

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(b) The use of all these sources permits elaboration of

the specific artistic, historic, social, and scientific

dimensions of the cultural heritage being examined.

“Information sources” are defined as all physical,

written, oral, and figurative sources, which make

it possible to know the nature, specificities,

meaning, and history of the cultural heritage.

Let’s start with “PUBLIC”

It is difficult, at this point, to offer quick solutions but perhaps

we can draw some preliminary conjectures as to what the

selection criteria should incorporate. Thus, I conclude by

offering, as an initial basis for further discussion, a list of

queries based on the notion of PUBLIC:

(a) Provenance: What is the provenance of the work

in terms of origin and authorship?

(b) Universal: Does the work constitute outstanding

universal significance, value or benefit to mankind?

Should such types of matter remain or be returned

to the “public domain” list (for example, natural

resources or genetic resources)?

(c) Barriers: Should a protected work be declared to

be in the public domain if it constitutes a barrier

to competitive practices, collaborative efforts,

upstream innovation or protection of human rights?

(d) Legal attributes: Should the work, irrespective of

public domain claims, be objectively protected

by intellectual property rights and/or other legal

mechanisms, such as under a licence?

(e) Interests: Are there, or is it likely that there will

be, any interests vested in the work? Are there

derivative versions of a public domain work? Is the

public domain work part of a protected collection?26

(f) Commons: Should the rule be that all works are

presumed to be within the commons unless it can

be proved otherwise?

Key CONCLUSIONS AND ReCOMMeNDATIONS

The WIPO Development Agenda is an • opportunity, not only for developing countries and public interest organizations, but also for more developed countries to place the notion of the “public domain” at the centre of the intellectual property debate.

The experience of interpreting and • implementing the Berne/TRIPS “three-step test” provides useful lessons for promoting norm-setting activities that support a robust public domain and setting out the guidelines for countries to identify and list public domain works.

Access to the public domain should not be • limited to the existing body within a particular jurisdiction, but should be extended to an international list of “public domain” materials.

Countries, particularly developing countries • and LDCs, should be able to rely on an international and mature listing of public domain material in order to boost their local innovation, as innovation and creativity depend, to a very large extent, on viable access to existing public domain sources.

Selection criteria for public domain material • in an international register for “public domain matter” could benefit from the work carried out by UNESCO in listing world heritage since the adoption of the landmark Convention on the Protection of the World Cultural and Natural Heritage (1972).

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1 On 4 October 2004, the General Assembly of the World Intellectual Property Organization (WIPO) agreed to adopt a proposal presented by the Group of Friends of Development (namely Argentina and Brazil), for the establishment of a Development Agenda for WIPO, Doc. WO/GA/31/11.

2 See http://www.wipo.int/ip-development/en/agenda/. A Committee on Development and Intellectual Property (CDIP) was established to develop a work programme for the implementation of these recommendations.

3 Recommendation 15, WIPO Development Agenda.

4 Opderbeck, DW. (2007) The Penguin’s Paradox: The political economy of international intellectual property and the paradox of open intellectual property models. Stanford Law and Policy Review. No. 18: 101 at 102.

5 Kapczynski, A . (2008) The access to knowledge mobilization and the new politics of intellectual property. Yale Law Journal: 804 at 854 et seq.

6 Boyle, J. (2003) The second enclosure movement and the construction of the public domain. Law and Contemporary Problems. Winter/Spring 2003: 52.

7 See articles 13, 17, 26(2) and 30 TRIPS.

8 For further reasons, see UNCTAD–ICTSD Resource Book on TRIPS and Development. Cambridge University Press: 690 et seq.

9 Article 3:2, Dispute Settlement Understanding; See Japan – Taxes on Alcoholic beverages. Report of the Appellate Body, WT/DS8, 10, 11/AB/R, 4 October 1996; and United States – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS/2/AB/R, 29 April 1996.

10 Zeitler, HE. (2005). Good faith in the WTO jurisprudence: necessary balancing element or an open door to judicial activism? Journal of International Economic Law. No. 8: 721.

11 For an expanded discussion on this, see Suthersanen, U. (2005). The future of copyright reform in developing countries: teleological interpretation, localized globalism and the “public interest” rule. In UNCTAD–ICTSD Dialogue on IPRs and Sustainable Development: Revising the Agenda in a New Context. Bellagio, Italy. http://www.iprsonline.org/unctadictsd/bellagio/Bellagio2005/Suthersanen_final.pdf.

12 Article 31(3)(c),Vienna Convention on the Law of Treaties.

13 UNCTAD–ICTSD Resource Book on TRIPS and Development. Cambridge University Press: 693.

14 For a text of the declaration, see http://www.ip.mpg.de/shared/data/pdf/declaration_three_steps.pdf.

15 Citing the decision of the French Supreme Court, 28 February 2006, 37 IIC 760 (2006); the WTO Panel report WT/DS114/R of 17 March 2000 (Canada – Patents); and the WTO-Panel report WT/DS160/R, 15 June 2000 (United States of America – Copyright).

16 Samuelson, P. (2006) Enriching discourse on public domains. Duke Law Journal. No. 55: 783, 789–91.

17 McCarthy, J. (1988) McCarthy on Trade Marks and Unfair Competition. Matthew Bender: New York, third edition. Vol. 1, paragraph. 1.01[2].

18 Litman, J. (1990) The public domain. Emory Law Journal. No. 39: 965, at 967–968. See also Lange D (1981). Recognizing the public domain (1981). Law and Contemporary Problems: 147. For criticisms of the concept, especially in relation to claims by indigenous groups, see Chander A and Sunder M (2004). The romance of the public domain. California Law Review. No. 92: 1331 at 1335.

19 Joint Statement by IFLA, EIFL and EBLIDA to the Provisional Committee on Proposals Related to a WIPO Development Agenda, Second Session, Geneva, 26–30 June 2006, at http://www.ifla.org/III/clm/p1/A2K-7.htm.

20 From “Copyright and Fair Use, Stanford University Library and Academic Information Resources,” at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/index.html.

21 For one definition of open source, see http://www.opensource.org/docs/definition.php.

22 Opderbeck, DW. (2007) The penguin’s paradox: the political economy of international intellectual property and the paradox of open intellectual property models. Stanford Law & Policy Review. No. 18: 101 at 126.

23 Dutfield, G and Suthersanen, U. (2007) Innovation and development. In Innovation without Patents: Harnessing the Creative Spirit in a Diverse World (2007). Suthersanen U, Dutfield G, Kit Boey Chow and Elgar E, Eds.

24 See 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.

25 The Operational Guidelines for the Implementation of the World Heritage Convention, WHC.08/01, January 2008, available at http://whc.unesco.org/archive/opguide08-en.pdf.

26 An out-of-copyright work can be easily re-converted into a protected work by transforming the nature of the work or the manner in which the public domain work is now consumed. Thus, for example, a public domain work, including statutes and old manuscripts, can be disseminated in a new format or published as a revised edition. This can be a particular problem if countries adopt the infamous European “database right” as a recent referral of a German decision to the European Court of Justice indicates. The ECJ has to determine whether a list of German poems from 1720 to 1933 constitutes a protected work under the European Court database right. See Directmedia Publishing GmbH v. Albert-Ludwigs-Universität Freiburg, 10 July 2008, Opinion of Advocate General, European Court of Justice, Case C-304/07.

endnotes

8

Boyle, James. “The Second Enclosure Movement and the Construction of the Public Domain.” Law and Contemporary Problems 66 (2003): 33.

Chander, Anupam, and Madhavi Sunder. “The Romance of the Public Domain.” California Law Review 92 (2004): 1331.

Dutfield, Graham, and Uma Suthersanen. “Innovation and Development.” In Innovation Without Patents: Harnessing the Creative Spirit in a Diverse World, eds Suthersanen, Uma, Graham Dutfield and Kit Boey Chow. UK: Edward Elgar, 2007.

European Court of Justice. “Directmedia Publishing GmbH v. Albert-Ludwigs-Universität Freiburg.” Opinion of Advocate General. Case C-304/07, 10 July 2008.

Kapczynski, Amy. “The Access to Knowledge Mobilization and the New Politics of Intellectual Property.” Yale Law Journal 117 (2008): 804.

Lange, David. “Recognising the Public Domain.” Law and Contemporary Problems 44 (1981): 147.

Litman, Jessica. “The Public Domain.” Emory Law Journal 39 (1990): 965.

McCarthy, J. McCarthy on Trade Marks and Unfair Competition. New York: Matthew Bender, 1988.

Opderbeck, David W. “The Penguin’s Paradox: The Political Economy of International Intellectual Property and the Paradox of Open Intellectual Property Models.” Stanford Law and Policy Review 18 (2007): 101.

Samuelson, Pamela. “Enriching Discourse on Public Domains.” Duke Law Journal 55 (2006): 783.

Suthersanen, Uma. “The Future of Copyright Reform in Developing Countries: Teleological Interpretation, Localized Globalism and the ‘Public Interest’ Rule.” Paper presented at the UNCTAD-ICTSD Dialogue on IPRs and Sustainable Development: Revising the Agenda in a New Context, Bellagio, Italy, 2005.

UNCTAD-ICTSD. Resource Book on TRIPS and Development. New York: Cambridge University Press, 2005.

WTO Appellate Body Report. Japan – Taxes on Alcoholic Beverages. WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 4 October 1996.

WTO Appellate Body Report. United States – Standards for Reformulated and Conventional Gasoline. WT/DS2/AB/R, 29 April 1996.

WTO Panel Report. Canada – Patent Protection of Pharmaceutical Products. WT/DS114/R, 17 March 2000.

WTO Panel Report. US – Copyright Act. WT/DS160/R, 15 June 2000.

Zeitler, Helge E. “Good Faith in the WTO Jurisprudence: Necessary Balancing Element or an Open Door to Judicial Activism?” Journal of International Economic Law 8 (2005): 721.

references

About the authorDr. Uma Suthersanen is Reader in Intellectual Property Law & Policy, School of Law, Queen Mary, University of London She can be reached at u.suthersanen@qmul.ac.uk

The views expressed in this Policy Brief are those of the author, and do not necessarily represent the views of the United Nations Conference on Trade and Development (UNCTAD) or those of the International Centre for Trade and Sustainable Development (ICTSD).

UNCTAD and ICTSD welcome feedback and comments on this document. These can be sent to Ahmed Abdel Latif at aabdellatif@ictsd.ch or, where applicable, to the author directly.

ICTSD has been active in the field of intellectual property since 1997, among other things through its programme on Intellectual Property Rights (IPRs) and Sustainable Development, which since 2001 has been implemented jointly with UNCTAD. One central objective of the programme has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries that includes decision-makers and negotiators, as well as representatives from the private sector and civil society, who will be able to define their own sustainable human development objectives in the field of IPRs and advance these effectively at the national and international level.

For further information, visit: http://ictsd.net/, www.iprsonline.org or www.unctad.org

About the International Centre for Trade and Sustainable DevelopmentFounded in 1996, the International Centre for Trade and Sustainable Development (ICTSD) is an independent non-profit and non-governmental organization based in Geneva. By empowering stakeholders in trade policy through information, networking, dialogue, well-targeted research and capacity-building, ICTSD aims to influence the international trade system so that it advances the goal of sustainable development.

About UNCTADEstablished in 1964, the United Nations Conference on Trade and Development (UNCTAD) is the focal point within the United Nations for the integrated treatment of trade, development and interrelated issues in the areas of finance, technology and investment. UNCTAD seeks to promote the integration of developing countries into the world economy by providing a forum for intergovernmental deliberations, research and policy analysis, and related technical assistance. UNCTAD’s programme on the development dimensions of IPRs seeks to help developing countries participate effectively in international discussions on IPRs and – at the national level – to help ensure that their IP policies are consonant with development objectives.

© ICTSD, 2008. Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. The work is licensed under the Creative Commons Attribution-Noncommerical-No Derivative Works 3.0 Licence. To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc-nd/3.0/ or send a letter to Creative Commons, 171 Second Street, Suite 300, San Francisco, California 94105, United States of America.

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